A diocesan bishop recently [in the late
1980s] denied the Eucharist to a pro-abortion
politician and thereby sparked a storm of controversy. Most of this reaction
divided along partisan lines, applause for the bishop from pro-lifers,
denunciations from pro-abortionists. But some pro-lifers, while grateful for
this show of episcopal leadership, felt constrained to admit (privately at
least) that the bishop's action seemed to betray a certain lack of respect for
ecclesiastical due process. They recalled Chesterton's bon
motthat if a thing is worth doing, it's worth doing poorly. Protecting
pre-born children against the abortionist's blade, they noted, is eminently
worth doing.[1] So too is upholding the
Church's constant teaching on the heightened responsibility of public officials
to protect innocent human life. Would not such weighty considerations allow us
to wink at the demands of ecclesiastical procedure and get directly to the
business of defending pre­born children and Church teaching?

Briefly, the answer is no. In fact, Canon 87 § 1 of the 1983 Code of
Canon Law positively forbids "winking at" the requirements of penal or
procedural laws. Indeed, deeper investigation reveals several significant
canonical questions which could be raised against the bishop's action. In the
end, though, they all come down to whether the bishop's denial of Eucharistic
participation was canonically legal. If it was legal, his courageous stand has
done pre-born children and Church teaching a great service; but if it was
illegal, his blunder could embarrass pro-life efforts for months, perhaps
years.

According to published reports,[2]
the diocesan bishop recently sent a letter to a Catholic politician informing her
that, because of her persistent public support for and advocacy of pro-abortion
legislation, he had "no other choice but to deny you the right to
receive the Eucharist." Later, in response to questions from the press, the
bishop stated that the politician "is not excommunicated. However, she has
been denied the right to receive Communion until she forms her conscience in
conformity with Church moral teaching and the divine law and goes to
confession." The politician, for her part, has indicated that she accepts
the bishop's decision, but publicly reiterated that she has not changed her
attitude or behavior in the matter of abortion.[3]

Certain laws restricting rights are interpreted narrowly and strictly

Although several canons bear upon this topic, the following seem to be
the most important. I begin with Canon 213 which declares that "It is the
right of the Christian faithful to receive assistance from sacred Pastors out of
the spiritual goods of the Church, especially from the word of God and the
sacraments."[4] The grammatical use of the
dative of the possessor construct (Iusest christifidelibus) emphasizes the high
priority to be given to the exercise of this right. More specifically, Canon 912
states that "Any baptized person who is not prohibited by law can and must
be admitted to Holy Communion.[5]
The canon is strongly preceptive (debet admitti), though qualified (qui
iure
non prohibetur).

Next, under Canon 18, the imposition of a penalty or the denial of the
free exercise of a right is subject to strict, that is, narrow interpretation.
This terse canon represents one of the oldest and finest aspects of canonical
tradition. It places the burden of justifying any penalty or restriction of
rights squarely on ecclesiastical authority. Finally, as additional protection
against improper ecclesiastical coercion, Canon 221 § 1 states that "The
Christian faithful are able, in accord with the norm of law, legitimately
to defend and vindicate in a competent ecclesiastical forum the rights which
they enjoy in the Church." Canon law, like every respectable legal system,
seeks to offer an impartial forum with opportunities for rehearing.

Taken together, these canons offer
a formidable complex that upholds the faithful's right to the sacraments in
general and to the Eucharist in particular. They set very narrow bounds within
which ecclesiastical authority can restrict the exercise of these rights. The
stage is now set to examine the bishop's action in light of this demanding
muster. Specifically we will ask two questions: first, who is generally excluded by
law from receiving the Eucharist according to Canon 912; and second, did the
bishop follow the correct procedure for such exclusion in this case.

There are, I suggest, only four
canons in the 1983 Code by which a bishop could authorize the denial of the
reception of Holy Communion. I consider it imperative that the bishop, if he is
to withstand objections of having violated the politician's fundamental rights
to the Eucharist and to fair procedure, be able to base his denial of the
Eucharist on at least one of these canons. Two of the canons are from the
Code's penal legislation, one is a penal procedural provision, and the fourth is
a sacramental disciplinary norm. Let us begin this evaluation with the penal
canons.

a

The politician was not excommunicated

A) Canon 1331 on the censure
of excommunication prohibits participation in any of the sacraments or sacramentals as well as the exercise
of ecclesiastical governance. In the present case, though, the bishop's
prohibition extends only to receiving the Eucharist. In addition, his letter
informed the politician that she could return to Holy Communion basically upon
going to sacramental confession. This is certainly not the typical method for
the remission of excommunication under Book
VI, Part I, Title VI-The Cessation of Penalties, which usually
directs a juridical resolution of a penal situation. In any case the bishop
himself eliminated Canon 1331 as a defense for his action for, as noted above,
he explicitly stated that the politician was not excommunicated.[6]

B) Nor does the politician labor
under the censure of an interdict according to Canon 1332. While an interdict does not affect matters of Church
governance, the prohibition entailed again extends to all
of the sacraments and sacramentals. As was the case with
excommunication, the application of an interdict demands certain indispensable
penal procedural formalities which the bishop made no claim to have followed.
Moreover, because modern Church law no longer uses distinctions such as major
and minor excommunications or (penal) anathema, the bishop cannot be relying on
some sort of "quasi-interdict" to justify his action. I conclude,
then, that the bishop's action cannot be defended by reference to the two canons
found within the penal law
of the Code.

C) The third canon
that speaks of
denial of the Eucharist is Canon 1722, located among the provisions
governing the formal criminal process. By this canon, the bishop can indeed
prohibit public participation in the Eucharist in order, among other things, to
prevent scandal. But at least three factors force the conclusion that this
canon, too, would not support the bishop's action. First, Canon 1722 operates
only in service to the formal penal process and there is no indication that any
penal process was invoked in this case. (Whether this lack of penal process
was itself illegal remains, of course, to be answered.) Second, and more
decisively, Canon 1722 explicitly demands the citation of the accused (as well
as the promoter of justice) prior to its implementation. It appears that no
formal contact with the politician, let alone any formal citation, took place prior to
delivery of the bishop's letter. Third, Canon 1722 authorizes the denial only of
public participation in the Eucharist,[7]
whereas the bishop's prohibition apparently extends to both public and private
reception. Once again, one must conclude that the bishop's action could not be
defended by appeal to the provisions of canonical penal procedure.

D) This leaves, then, only one canon
capable of defending the bishop against accusations of illegality in his denial
of the Eucharist to the pro-abortion politician. This remaining canon is drawn
from neither the penal nor the procedural books of the 1983 Code, but rather
from the Church's sacramental discipline. I refer to Canon 915 which states in
pertinent part that "those who persist in manifest grave sin are not to be
admitted to Holy Communion."

No basis for importing penal judicial procedure

s

Now the terminology of Canon 915
immediately accounts for at least two important aspects of the bishop's
action: first, it explains why the bishop denied only the Eucharist to the
politician for, unlike the canons on excommunication, interdict, or penal
process, Canon 915
authorizes only Eucharistic denial and would not support the application of any
other burdens; second, because Canon 915 operates only in the face of sin, it
explains why the bishop informed the politician that regular sacramental
confession, and not the juridical process for remission of penalties, would
secure her readmission to the Eucharist.[8]

Reflection on the placement of
this canon within the Code, moreover, resolves a crucial allegation against the
bishop's action, namely, that he violated ecclesiastical penal procedure. Canon
915, located within the Code's regulation of the sacraments, is neither a penal
nor a procedural canon. As such, I can see no canonical basis for interjecting a
formal judicial or administrative penal procedure into the operation of Canon
915. Clearly, though, this is the most crucial part of the debate over the
legality of the bishop's action and, because the 1983 Code differs notably from
the 1917 Code in this respect, it deserves a few more words.

Under Canon 2215 of the 1917 Code,
"the deprivation of any benefit" was considered a penalty in the broad
sense. Thus (and despite the fact that canonical jurisprudence did not always
adopt this position) a reasonable argument could have been made under the 1917
Code that a bishop's denial of the Eucharist under these circumstances was a
kind of penal action and must therefore have been preceded by some kind of penal
formalities.

But, with unmistakable
deliberation,[9] the Coetus on Sanctions
dropped Canon 2215 during the post-Conciliar canonical revision process and the
1983 Code now contains no such norm.[10]For purposes of this discussion,
then, I suggest that the 1983 Code contains only penalties (such as those
explicitly authorized in Book Six) or restrictions on the exercise of rights,
such as that found in Canon 915. Thus, the assertion that the "prohibition of
holy communion is akin to a canonical penalty,"[11]
while it had some merit under the 1917 Code, is infirm under the 1983 Code.
Still less can it be used to "piggy-back" penal procedural obligations
into an area of the Code where none textually exist. Although the verbal
construction of Canon 915 (ne
admittantur) is not the
most forceful canonical expression of a prohibition,[12]the ancient tradition behind this canon, a tradition which firmly links
Eucharistic participation to freedom from grave sin,[13] is more than sufficient
to confirm a positive prohibition against administering the Eucharist in a
potentially sacrilegious manner.

Assessing
"public
and notorious" conduct

Consequently, I conclude that Canon 915 contains precisely the type of
"prohibition by law" demanded prior to Eucharistic exclusion under
Canon 912. This special prohibition of Canon 915, reflective of the unique and
surpassing esteem in which the Church holds the Eucharist,[14]
is established independently of the 1983 Code's penal law and operates without
reference to the otherwise certainly binding demands of penal procedure.

Having demonstrated that a formal penal process is not required in
order to deny Eucharistic participation under Canon 915, there still remains a
crucial question as to whether the bishop's action in this case complied with
the expressed norms of this canon. We recall that this scrutiny, even though it
does not involve the imposition of a penalty, nevertheless entails the denial of
the exercise of a fundamental right, and must therefore be conducted strictly.
Now while Canon 915 leaves the precise methodology to the discretion of the
bishop,[15]
it does demand that several distinct tests be satisfied in order to support
Eucharistic exclusion. Specifically, three things must be ascertained about the
politician's allegedly sinful action[16]
in order to defend the bishop's response: namely, manifestation of behavior,
obstinacy in that behavior, and gravity of the offense.

1. No one reasonably denies that, by any measure, the politician's
continuous and vigorous support for pro-abortion legislation was widely known
and even culminated, I understand, in a series of television commercials
precisely to that effect. Moreover, the politician herself positively affirmed
her support for these policies specifically within the context of responding to
her exclusion from the Eucharist. Now the canonical understanding of manifest in
this context seems closely to parallel the 1917 Code concept of "public and
notorious" which encompassed those who, although not convicted in an
ecclesiastical tribunal, nevertheless admitted their actions.[17]
Thus, by either criterion (notoriety or self-admission), we may conclude that
the politician's action was manifest.

2. Next, we have (again) this politician's own unfortunate but frank words
reiterating that she has not changed and does not intend to reform her support
for pro­abortion legislation. Each passing month seems to confirm the presence
of this obstinacy.[18]

3.
We have now only to ask if the politician's actions can be considered grave. I
suggest two inquiries here, first on the gravity of the subject matter, and the
second on the gravity of the politician's involvement.

3A) The gravity of the subject is
easily established. We have but to recall the Second Vatican Council's vigorous
condemnation of the "unspeakable crime." Furthermore, as noted above,
abortion itself remains one of the very few latae sententiae (automatic) excommunications in modern canon law. In
ecclesiastical jurisprudence, there is simply no doubt that abortion is a grave
crime.

3B) There remains only to consider the
politician's own involvement in abortion. As to this, whatever might be said of
passive compliance with pro-abortion legislation on the part of the populace,
not even this limited reply is available to a politician who, quite beyond
voting for such laws, actively and publicly sponsors and promotes them.[19]
In brief, this politician's deep, public, and continuous involvement in
governmental policies which aid and abet the unspeakable crime of abortion can
only be considered as grave. Thus I argue that the bishop was correct in
concluding that all three requirements for the denial of Eucharistic
participation under Canon 915, namely gravity, obstinacy, and manifestation,
were satisfied in this case.

Bishop's response was proper

There is one final aspect of this
matter which needs to be addressed, and that concerns the right of the faithful
under Canon 221 to defend their canonical rights in an ecclesiastical tribunal.
This provision, though not the concept, is new in modern canon law, and
interpretations or jurisprudence on it are few. But, as James Coriden has
observed, "the canon could not be clearer.”[20]I would argue that it should be generously applied.

In this case, the politician
starts with the right to receive the Eucharist. The bishop has precluded the
exercise of that right. Should the politician now wish to bring the matter
before an ecclesiastical judicial or administrative forum, I can only assume
that her petition for hearing would be granted. At that point both she and the
bishop would be permitted to present ample evidence on their respective
positions.

But in the meantime, the
Eucharistic exclusion now in force against the pro-abortion politician in virtue
of Canon 915 and Canon 212 § 1, having been properly administered, stands until 1) the politician
accepts its terms,[21]
2) the bishop withdraws his letter of prohibition, or, 3) the bishop's
hierarchical superior decides against him upon recourse or appeal by the
politician.

From an ecclesial point of view,
one of the most disturbing aspects of modern abortionism is the significant
participation it receives from well-known and influential Catholics. But under
the foregoing canonical
analysis, the bishop in this case has done more than eliminate a
serious case of sacrilege and scandal from his Church. He has plainly
demonstrated the practical applicability of canon law in response to one of
society's gravest afflictions. His action does not in any way prevent the
prudent application of other more encompassing penal sanctions against the
proponents of abortion. Instead it offers, in full accord with the demands of
canonical equity, a restrained but immediate and effective response to this
crisis, while awaiting the inevitably slower turn of the wheels of penal
procedural justice. +++

Footnotes

[1]The
Second Vatican Council, in its only burst of anger, called abortion and
infanticide "abominable crimes." See Gaudium et spes, No.
51.

[2]See
primarily P. Riley, "Bishops in battle formation," 30 Days
(English ed.) 22-24 (December 1989), and, G. Duncan, "The bishop and
the politician," 30 Days (English ed.) 24-25 (December 1989).
Concentrating on the issues rather than on personalities, I omit here the names
of the principles.

[3]The
following remarks apply only to the case of a bishop denying the Eucharist
to a pro-abortion politician. I thus distinguish this case from (without
commenting on) two similar recent incidents involving a pastor and a declaration
of excommunication respectively. I also stress that evaluations
of prudence, practicality, or general appropriateness of such actions, while
important, are better left to those with first-hand knowledge of the
situation.

[4]Assuming
easy access to the Code's official Latin provisions, I only offer
English translations for convenience.

[5] I do not consider the
canons which authorize a "just penalty" as implicitly authorizing
denial of the Eucharist. It is unlikely that the Legislator intended so many
actions to carry the momentous possibility of Eucharistic exclusion,
especially when the 1983 Code went to such lengths to reduce sharply the
number of offenses entailing exclusion from the Eucharist as part of an
excommunication or interdict.

[6]This
clarification was helpful, though, for two reasons. First, a number of
observers conjectured that the politician had fallen under the latae
sententiae excommunication of Canon 1398 which prohibits abortion.
Suffice it to say, though, that it is not likely that Canon 1398, standing
alone, could reach a politician in light of the structure of American
government. Moreover, if the bishop attempted to describe his letter as
merely declaratory of a latae sententiae penalty, his action would
open to several very serious penal procedural objections.

Second, there was a certain amount of talk in various
reports about "medicinal penalties." This term, which encompasses
censures such as excommunication, also implies certain procedural demands,
most notably, the requirement of Canon 1347 § I that a warning be given
prior to imposition of the censure. These were admittedly not observed by
the bishop in this case. It was important, therefore, for the bishop to
stress that the politician had not incurred the censure of excommunication.

[7] That only public reception
is forbidden in this context, see Vermeersch-Creusen, Epitome luris
Canonici, III: 142 (1946), and Augustine, A Commentary on the New
Code of Canon Law, VII: 384 (1921).

[8] We can also observe that
the canonical tradition behind Canon 915 (that is, 1917 CIC 855) precluded
both public and private reception of the Eucharist. See Abbo & Hannan, Sacred
Canons, II: 854, and Augustine, Commentary, IV: 229. Thus the
bishop's implicit denial of private reception of the Eucharist is also
supported under Canon 915.

[10] Nor do I think one can
infer such a definition from Canon 1311 § 2 of the 1983 Code which states
in part that "the law can establish other expiatory penalties which
deprive the Christian faithful of some spiritual or temporal good."
Consider: 1917 CIC 2215 linked "ecclesiastical penalty" and
"deprivation of a good" by the copulative verb "est",
expressing a very strong identity between the two concepts. But in 1983
CIC 1311 § 2, the clause "which deprive . . ." (quae ...
privent) is dependent upon the clause containing "other
penalties." This suggests that "penalty" is related to
"deprivation of benefit" as species is to genus. In other words,
every penalty is a deprivation of a benefit, but not every deprivation of a
benefit is a penalty. And if the deprivation of the benefit of the Eucharist
under Canon 915 is not a penalty, one cannot demand the specific penal or
procedural obligations of Book Six or Book Seven from a bishop
who acts under Book Four.

[11] This phrase was used by
the noted liturgical lawyer John Huels in his reflections on this same case
entitled "The faithful have a right to the sacraments" published
in the National Catholic Reporter, Dec. 15, 1989, p. 23. Although for
the reasons outlined herein I disagree with Huels' conclusions on the interpretation
of this particular case, his article clearly evidenced the cautious
restraint with which canonists interpret the Church's coercive power.

[15] Determinations of the
actual methodology to be used under Canon 915 in a particular case, because
they fall substantially into the realm of prudence, are beyond the scope of
this article. I would only note that Joseph Farraher offers just such an
outline in two of his Questions Answered carried in these pages. See
"When, if ever, should I refuse Communion to the unworthy?," HPR
82: 70-72 (1982), and "Should Communion be refused in a case like
this?," HPR 90: 74-75 (1989). His approach basically advises a
private confrontation of the individual involved. It is also clear, by the
way, that Farraher would not demand a formal penal process prior to precluding
the unworthy from the Eucharist.

[16] It goes without saying
that evidence and proofs are functions of the external forum, and that
inquiries on sinful behavior are understood to refer only to objectively sinful
actions.

[17] See for example,
Augustine, Commentary, IV: 230, and Abbo & Hannan, The Sacred
Canons, II: 854. Huels, at CLSA Comm., 653, reminds that
"any prudent doubt about either the gravity or the public nature of the
sin should be resolved in favor of the person . . ." My analysis
indicates, though, that no prudent doubt exists in this case.

[18] Huels noted in his Reporter
article, "Since the church's teaching on abortion is well-known, it
is not difficult to see how someone could assume Catholic, pro-choice
politicians are obstinate."

[19] One recalls here the
Congregation for the Doctrine of the Faith and its 1974 Declaration on
procured abortion, No. 22. This document (several times in fact)
soundly rejected the idea that a Christian could "take part in a
promotional campaign in favor of (a pro-abortion] law, or vote for it."

[21] This acceptance could
also occur, I suggest, under the circumstances envisioned by Canon 916 which
authorizes a person guilty of grave sin nevertheless to receive the
Eucharist without prior sacramental confession if 1) there is grave reason,
2) there is no opportunity for sacramental confession, 3) the obligation of
making a perfect act of contrition is recalled, and 4) there is a firm
resolve to go to sacramental confession at the earliest opportunity. These
canonical requirements, consistent with sound sacramental theology, also
substantially satisfy the bishop's directive to the politician.